Abbildungen der Seite
PDF
EPUB

payable, shall have been duly addressed and mailed to the person whose life is insured, or the assignee of the policy, if notice of the assignment has been given to the corporation at his or her last known post office address in this state, postage paid by the corporation or by any officer thereof, or person appointed by it to collect such premium at least fifteen (15) and not more than forty five (45) days prior to the day when the same is payable. The notice shall also state that unless such premium, interest, or installment or portion thereof then due shall bpaid to the corporation, or to the duly appointed agent or person authorized to collect such premium, by or before the day it falls due, the policy and all payments thereon will become forfeited and void, except as to the right to a surrender value or paid up policy as in this chapter provided. If the payment demanded by such notice shall be made within its time limited therefor, it shall be taken to be in full compliance with the requirements of the policy in respect to the time of such payment; and no such policy shall in any case be forfeited, or declared forfeited, or lapsed, until the expiration of thirty (30) days after the mailing of such notice. The affidavit of any clerk, officer or agent of the corporation, or of any one authorized to mail such notice, that the noticé required by this section has been duly addressed and mailed by the corporation issuing such policy shall be presumptive evidence that such notice has been duly given. No action shall be maintained to recover under a forfeited policy, unless the same is instituted within one (1) year from the day upon which default was made in paying the premium, installment, interest or portion thereof, for which it is claimed that forfeiture ensued." Laws 1897, c. 218, § 2. The second proposition presented under the first assignment of error is that the said statute is applicable only where the assured has a postoffice address in the state of New York, and that the court erred in assuming in the charge given to the jury that the statute applied in this case, as the assured had no post-office address in said state. It is true, as contended by the plaintiff in error, that the said statute provides only for the mailing of notice to the assured "at his last known post office address in this state"; that is, at his post-office address in the state of New York. Considered simply as a statute, the act of the Legislature of New York was without effect beyond the limits of that state. The Legislature of New York, in enacting the statute in question, did not attempt to regulate contracts between insurance companies and citizens of other states. It is only by contract between the parties that the said statute can be made operative in such cases. When an insurance company-the same being a New York corporation, as in this instanceissues a policy of insurance to a citizen of Texas, and the policy provides that the same

shall be governed by the laws of New York, the said statute becomes a part of the contract. It must be held, therefore, that in such case the company contracts to give notice to the assured as to when his premiums will fall due, and the effect of a failure to pay the same. It contracts to give such notice in writing, by mailing same to the assured at his last-known post-office address. The words "in this state," when written into the contract, and considered as a part thereof, and not merely as a part of the statute of the state of New York, must be held to mean the state of the residence of the assured. Any other construction of this statute, when considered as a clause of the contract, would render the same meaningless and of no effect. That such construction was intended by the parties in this case is evidenced by the action of the company in mailing to the assured at his post-office address at Dallas the notice required by the said statute. The notice mailed reads thus: "As required by law, we hereby notify you that the premium of $60.70 on policy No. 106,505 will be due on the 21 day of Nov., 1899 (if said policy be then in force), and if not paid when due the policy and all premiums thereon will become forfeited and void, except as to the right to a surrender value or paid up policy as provided by statute. This notice is sent because the law of this state compels it and in no way does it impair or invalidate the policy contract." The company thus recognized the statute as constituting a part of the contract, and construed the contract as requiring it to mail the notice to the assured at his post-office address, at Dallas. This might not be conclusive of the question, but it is certainly persuasive and admissible in the way of argument. We conclude that the plaintiff in error was not entitled to a peremptory instruction on the theory that the said statute does not apply to this case.

*

[ocr errors]

The plaintiff in error further contends that, even if the said statute is applicable to this case, it was bound only to give notice of the time of the maturity of the premium as fixed by the policy, and was not required to give notice of the time of maturity as fixed by the agreement for the extension. It is sufficient to say that the question has been settled adversely to the contention insisted upon, by the Court of Civil Appeals of the Second District in Insurance Co. v. Orlopp, 61 S. W. 336, and by our Supreme Court in Insurance Co. v. English, 67 S. W. 884.

A further contention is that the granting of the extension simply had the effect to suspend the forfeiture until the termination of the period of extension, and that it was necessary for the assured, in order to prevent a forfeiture, to comply with the condition upon which the extension was granted, and that.. as he failed to do so, the policy became forfeited. This contention is practically settled against the plaintiff in error by the decisions

just referred to, since if the company was bound to give notice of the time of the maturity of the premium, as fixed by the agreement for the extension, before it could insist upon a forfeiture, there could be no forfeiture until the notice had been given. The doctrine insisted upon may be applicable in some cases, but not in a case like this, where, under the contract of insurance, the giving of notice is a prerequisite to the right to claim a forfeiture.

Our conclusion is that the trial court did not err in refusing to charge the jury to return a verdict for the defendant, and the first assignment of error is therefore overruled.

The plaintiff in error complains of the action of the trial court in permitting Harry Berwald, a witness for the defendant in error, to testify that when I. Reinhardt, a member of the firm of Reinhardt & Son, solicited Louis Berwald to take out the policy, he said to him that "we have got an office here, and we can transact business for the company in connection with the general office, and we can accommodate you; and I know how men are in business, sometimes -sometimes they have money, and sometimes they have not-and we can accommodate you"; that he talked considerable on that point; he said he had indulged people, and he could extend to them accommodations at times, when they needed it. The objection to this evidence was that it was sought thereby to vary the terms of the written contract, and there was no plea that the contract had been superinduced by fraud, accident, or mistake. We do not understand that such was the purpose of the testimony. Reinhardt & Son were the general agents for the company for the state of Texas, and had their office in the city of Dallas, where Berwald resided and did business. It was a material issue on the trial whether Reinhardt & Son, when the premium fell due, agreed with Berwald to extend the time for the payment thereof, and whether they had authority to do so. If, as shown by the evidence complained of, I. Reinhardt, when the policy was issued, stated that he frequently granted such favors to his customers, the same tended to corroborate the evidence offered by the defendant in error to show that the extension was in fact granted. And if, as shown by this testimony, Reinhardt & Son were in the habit of conceding such accommodations to their local customers holding policies in said company, the same tended to show authority on their part to do so. It should be remembered that there was no question as to the fact that Reinhardt & Son were the state agents of the company, and that the said statements were made in the conduct by them of the company's business. Of course, the statements did not bind the company to grant the extension, and the court, in the charge to the jury, did not authorize the jury to consider the evidence

for that purpose. The evidence was relevant on other issues, and the objection that it tended to vary the written contract was properly overruled. If the evidence was not admissible for the purposes for which it was offered, the objection urged did not cover the grounds upon which it should have been excluded.

The plaintiff in error complains of the action of the court in permitting the said witness Harry Berwald to testify that the assured, Louis Berwald, could not speak or write the English language, except to sign his name. In view of the charge of the court, this evidence related to an immaterial issue, and the error, if any, was harmless. In the absence of fraud, which was not shown, the assured was bound to take notice of the stipulation of the policy limiting the authority of the company's agents, and the case was submitted to the jury on that theory. The evidence in question cannot have affected the verdict on the issues as submitted, and no injury can have resulted to the plaintiff in error from its introduction.

The plaintiff in error complains of the action of the court in permitting the defendant in error to prove by one Hurst that he held a policy in the said company, and that Reinhardt & Son extended the time for the payment of his premiums. The evidence was not admissible for the purpose of establishing a custom that would destroy the binding effect of the provisions of the policy, and the court, in the charge given to the jury, recognized this rule, and treated the stipulations contained in the policy as binding on the assured, unless waived by the company, acting through its duly authorized agents. The testimony of Hurst, taken in connection with that of Sidney Reinhardt and Leon Blum, tended to show that Reinhardt & Son frequently granted such extensions, and that their action in doing so was acquiesced in and ratified by the company. Such course of dealing is indicative of authority on the part of Reinhardt & Son to act for the company in respect to such matters, and we are of opinion that the testimony of Hurst was admissible for such purpose.

One other question remains to be considered. It was alleged in the answer filed in the trial court by the plaintiff in error that "the assured not only voluntarily, but purposely and designedly, declined to pay the said premium due on November 21, 1899; that he expressly declined to pay the same for the reason that he desired to terminate his previous policy contract with this defendant; that he expressly declared that he desired to terminate such previously existing contract, and that he desired to take out insurance in another company in lieu of the insurance he had with this defendant; that, in pursuance of such purpose and design on the part of the said Berwald, he did, on or about the 14th day of December, 1899, apply for and obtain from the Pacific Mutual Life Insurance Com

pany of California a policy in the sum of $2,000; that said Berwald stated, as a reason why he declined to pay said premium, that he preferred the said policy of the said the Pacific Mutual Life Insurance Company of California; that he obtained said policy in the sum of $2,000 in the said last-named company; and that the same was paid." On the trial the plaintiff in error requested a special charge which reads thus: "If, from the evi dence, you find that Louis Berwald took out a policy in the Pacific Mutual, and that he did so with the intention of abandoning the policy herein sued on, and that he did so abandon the policy herein sued upon, then you will return a verdict for the defendant." This charge was refused, and the issue raised by said plea was not submitted to the jury. This action of the trial court is assigned as error. The defendant in error insists that the plea above quoted sets up no defense to the action on the policy. It is unnecessary for us to decide that question, as the evidence was not such as to require the submission of the issue attempted to be raised by the plea. It was shown that on December 14, 1899, Berwald took out a policy for $2,000 in the Pacific Mutual Company, and that after his death the same was paid to his wife, who is the defendant in error herein. Harry Cerf, the agent who solicited said insurance, testified that Berwald told him at the time that it was his intention to take that policy in lieu of the one he had in the Washington Life Insurance Company, which is the policy sued on herein, and to drop the said last-named policy. On the other hand, this testimony was controverted by Harry Berwald, and it was shown that in the application for the Pacific Mutual policy it was stated that the applicant was insured in the Washington Company for $2,000. The evidence is uncontradicted to the effect that when the premium fell due on the policy in suit on November 21, 1899, and Blum presented the account therefor, Berwald asked for an extension for 30 days. The verdict establishes the fact that the extension was granted, and there was no attempt to show that the notice required by the policy of the maturity of the premium as extended was given. It is conceded that the company knew nothing of the intention of Berwald to abandon the contract, if he had such intention, until after the extension had expired. It is beyond controversy, therefore, that in granting the extension, and in failing to give notice, the company was not influenced by the secret intention of Berwald to abandon the contract, if such intention existed. The evidence suggests the theory that there may have been an intention on Berwald's part to abandon his insurance in the Washington Company, but it shows conclusively that the company did not know the fact, and did not act thereon; that there was no mutual agreement between the parties to the contract to abandon the contract; that Ber

wald received no consideration for such abandonment; and that the company sustained no injury on account of the intention of Berwald to abandon the contract, if he had such intention. The company might have terminated its liability on the policy by refusing to grant the extension, or by giving the notice required, or by agreement with Berwald, or by knowing and acting upon his intention to abandon the policy. None of these events occurring, it cannot be held that Berwald abandoned the contract of insurance, and the action of the trial court in refusing to submit the issue to the jury must be approved.

The judgment is affirmed.

On Rehearing.

(Feb. 28, 1903.)

Plaintiff in error requests us to correct certain of our findings of fact, and to make a number of additional findings. Complaint is made of the statement in the opinion that Blum presented to Berwald an account for the premium. The statement is not literally correct. Blum had the official receipt for the premium when he demanded payment thereof, and tendered the receipt on condition that the premium was paid. We find no other inaccurate statement in the opinion.

We are especially urged to make additional findings on the issue relating to the abandonment of the policy by Berwald. Our findings upon that issue are believed to cover every material fact pertinent to the issue as raised by the special plea and as presented by the requested charge.

Except as indicated above, the motion to correct our findings of fact and for additional findings is overruled. The motion for rehearing is also overruled.

HOME MUT. INS. CO. v. NICHOLS et al.* (Court of Civil Appeals of Texas. Jan. 31, 1903.)

INSURANCE-TRANSFER OF PROPERTY-CONSENT OF INSURER-NECESSITY OF WRITING -CONDITIONS-BREACH BY ORIGINAL HOLD

ER-DEFENSES.

1. Where an insurance agent had authority to consent on behalf of the insurer to a transfer of the property, and did orally consent to such transfer, such consent was binding on the insurer, though the policy provided that no agent should have power to give any permission affecting the insurance under the policy, unless in writing and attached thereto.

2. Where an insurance company consented to the transfer of the property insured, and to an assignment of the policy, a breach of condition by the original holder was no defense to an action by the transferee for a loss occurring after the transfer.

Error from district court, Dallas county; Richard Morgan, Judge.

Action by J. H. Nichols and others against

*Rehearing denied February 28, 1903.

2. See Insurance, vol. 28 Cent. Dig. § 1039.

the Home Mutual Insurance Company. From a judgment in favor of plaintiffs, defendant brings error. Affirmed.

Alexander & Thompson, for plaintiff in error. K. R. Craig and Fitzhugh & Smith, for defendants in error.

TEMPLETON, J. Suit by J. H. Nichols, B. S. Wathen, W. M. Luck, and J. E. Luck against the Home Mutual Insurance Company on a fire insurance policy in the sum of $1,000, issued on August 5, 1900, by the said company to W. M. Luck and J. E. Luck. The insurance covered a certain mill property, which was destroyed by fire on June 21, 1901, during the term of the policy. A trial before the court without a jury resulted in a recovery by the plaintiffs, and the defendant has appealed.

At the time of the issuance of the policy the property was incumbered with a lien in favor of Miss Virginia Green; the lien being evidenced by a deed of trust, with C. J. Green as trustee. The company knew of the existence of the lien, and there was a rider attached to the policy, making the loss, if any, payable to C. J. Green, trustee, as his interest might appear. The debt having matured, the trustee, in accordance with the provisions of the deed, advertised the property for sale. On June 3, 1901, the day before the sale was advertised to take place, the Lucks sold the property, and assigned the unexpired policy to Nichols. Wathen furnished Nichols the money to pay off the Green debt, and took a deed of trust on the property to secure the amount so advanced. The policy had been left by the Lucks with the company's agents for safe-keeping, and they authorized Nichols to go to said agents and have the necessary changes made. On the said 3d day of June, Nichols, accompanied by C. J. Green and Wathen's attorney, saw the company's agent, and notified him of the facts aforesaid, except the fact that the property had been advertised for sale. He exhibited the deed from the Lucks to himself, and his deed of trust to Wathen, and requested the agent to make such indorsements on the policy as were necessary to effect a transfer of the insurance. This the agent agreed to do, and Nichols went off to get some revenue stamps to put on his deed. He returned shortly, and the agent handed him the policy. A loss-payable clause in favor of Wathen had been attached to the policy, but the assent of the company to the transfer to Nichols had not been indorsed thereon. Nichols, supposing the proper indorsements had been made, did not examine the policy, and delivered the same to Wathen's attorney, who handed it to Wathen's clerk. Neither Nichols nor Wathen knew that the indorsements had not been made until after the loss occurred. The said agent of the company had authority to issue policies and to assent to the transfer of the insured property. Nichols and Wathen knew that the property had been advertised for

sale under the deed of trust to Green, but had no fraudulent purpose in not notifying the company's agent of the fact. It was not shown whether the company knew, in fact that the trustee had advertised a sale.

The policy contained a clause providing that the same should be void if, with the knowledge of the assured, notice of sale should be given of the insured property by virtue of any trust deed, or if any change should take place in the title of the subject of insurance. The policy further provided: "This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be indorsed hereon or added hereto; and no agent or other representative of this company shall have power to waive any provision or condition of this policy, except such as are by the terms of this policy the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions, no officer, agent or other representative, shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting this insurance under this policy exist or be claimed by the assured unless so written or attached." The plaintiff in error contends that the advertisement of sale under the trust deed, and the transfer of the property to Nichols, constituted breaches of the conditions of the policy, and the contention is admitted by the defendant in error to be well taken. The plaintiff in error presents the further contention that, as the assent of the company's agent to the transfer to Nichols was not indorsed on the policy as required by the provisions of the policy, the same was not binding on the company, and will not prevent a forfeiture. In support of this contention the plaintiff in error cites a decision by the Supreme Court of the United States in the case of Assurance Co. v. Building Association, 22 Sup. Ct. 133, 46 L. Ed. 313. In that case the property insured was covered by other insurance at the time the policy there sued on was issued. It was provided that the existence of such other insurance should render the policy nul! and void. When he took out the policy, the assured gave notice to the agent of the company who issued the policy of the existence of the other insurance, but no indorsement in respect thereto was entered on the policy. There was a provision of the policy relating to the authority of the agents of the company, and the manner of evidencing the assent of the company to waivers of condi tions of the policy, similar to that quoted above from the policy in suit herein. In an opinion by Justice Shiras, in which the question was exhaustively considered, it was held that the policy was void. It is plausibly argued by the plaintiff in error here that the decision cited should control in this case.

We think, however, that there is a broad distinction between the facts of that case and those of the one at bar. In the case before us the assent of the company to the transfer of the insured property was subsequent to the issuance of the policy. That it lay in the power of the parties to the policy contract to make such changes therein as they might agree upon after the execution of the contract is too clear for argument. It is equally clear that they were not irrevocably bound by the stipulation contained in the policy that their future contracts relating to the insurance in question should be in writing. Insurance Co. v. Earle, 33 Mich. 153, cited and approved in Morrison v. Insurance Co., 69 Tex. 353, 6 S. W. 605, 5 Am. St. Rep. 63. The rule that all preliminary negotiations will be treated as having been merged into the written contract, and prohibiting proof of contemporaneous parol agreements which affect the written instrument, has no application here. Beyond question, the company could, by agreement in parol made subsequent to the execution of the policy contract, legally assent to a transfer of the insured property, notwithstanding the provision of the contract that such assent, to be binding, should be in writing. The real issue, then, is not whether the company could bind itself by its assent verbally given, but whether the agent who acted for it in the transaction had authority to so bind it. This particular agent had been appointed by the company to act for it in the matter of assenting to such transfers. The question, then, is not whether he was authorized to bind the company by his acts done in that behalf, but whether his acts done were binding if not done in the prescribed manner. held the commission of the company to represent it in the matter of agreeing to the change in ownership of the insured property. His power and discretion in making such agreement were not limited. The limitations of the policy affected only the means by which his action was to be evidenced. It was provided by the contract that such agreement, to be valid, should be reduced to writing. But we have seen above that the company itself could waive the provision. As the company is a corporation, it can act only through its officers and agents. The authority to make the waiver necessarily resides in some of its officers or agents. In what officer or agent of the company can the authority be more fitly vested than the one who has been deputed by the company to deal with the assured, and to represent it in that relation? Undoubtedly, none; and, when the company puts him up as its representative, it cannot deny his acts. He may not exceed the limits of his authority, but, within its limits, his acts are those of his principal.

He

The clause of the policy relied on by appellant was not intended as a limitation of his authority to contract in behalf of the

company, but its purpose was to require him to contract in writing; and we have al ready seen that this would not prevent the company from binding itself by parol, and was not, in fact, a limitation of the power of the agent. It is significant that the clause under consideration declares that no officer, agent, or other representative of the company should have authority to make such agreement, except in writing. If no officer, agent, or other representative of the company could bind it by verbal agreement, then the company could not be bound in that manner-a conclusion which is not admissible. The company could not in this way deprive itself of its fundamental right and power to make contracts. It is too well settled to require a citation of authorities that a contract in writing may be altered or discharged by an agreement in parol. Our conclusion is that the contention of the plaintiff in error is not well taken, and that the assent of its agent to the transfer to Nichols was binding on the company, notwithstanding the provision of the policy requiring the assent to be indorsed on the policy. The failure to make the required indorsement being due to the oversight or negligence of the company's agent, and being in no way chargeable to the assured, and the assured having paid a valuable consideration for the policy, by permitting the company to retain the unearned premium, and having received and held the policy in the belief that he had procured valid insurance, the company is precluded from now asserting the invalidity of the policy. The company, through its said agent, had knowledge of the facts aforesaid, and, not having repudiated his acts, must be held to have ratified the same, and to be bound thereby. Morrison v. Insurance Co., supra. We have been led into a discussion of this question by the insistence of the plaintiff in error that the conclusion we have reached is in conflict with the decision of the Supreme Court of the United States, cited above. That our holding is in harmony with the decisions of our state Supreme Court is not controverted. The Morrison Case, supra, the Lee Case, 73 Tex. 643, 11 S. W. 1024, and the Wagner Case, 92 Tex. 549, 50 S. W. 569, are decisive of the question. It is unnecessary to consider whether there is a conflict between the rule announced by the state court and that laid down by the United States court, as the facts of the case at bar clearly distinguish it from the case decided by the court at Washington, and the cases do not necessarily turn upon the application of the same legal principles.

It is urged that the breach of the condition of the policy growing out of the advertisement of the insured property for sale under the trust deed should be held to operate as a forfeiture. The answer to the proposition is that the breach occurred before the policy was assigned to Nichols, and

« ZurückWeiter »